The decision of the Committee against Torture of August 9, 2017 in the case of H.I. v. Switzerland (communication No. 747/2016).
In 2016, the author of the communication was assisted in preparing a complaint. Subsequently, the complaint was communicated to Switzerland.
Subject of the message: extradition to Turkey.
Substantive issues: torture; inadmissibility of forced return.
The Committee's legal position: The purpose of such an assessment is to determine whether a person would personally be at a foreseeable and real risk of being subjected to torture in the country to which he is to be returned. The Committee must assess whether there are serious grounds to believe that the applicant would be in danger of being subjected to torture if returned to Turkey. (See communication No. 470/2011, H. v. Switzerland, Decision adopted on 24 November 2014, paragraph 7.2.). It follows from this that the existence of a consistent pattern of gross, flagrant or mass violations of human rights in a country is not in itself a sufficient reason to believe that a particular person would be in danger of being subjected to torture upon return to that country; in confirmation that such a danger would threaten the person personally, Additional reasons should be given. The opposite is also true: the absence of egregious and systematic violations of human rights does not mean that a person in his or her particular situation is not in danger of being subjected to torture... In assessing this risk of torture upon return to Turkey, the Committee must take into account all relevant circumstances under article 3, paragraph 2, of the Convention against Torture, including the existence of a consistent pattern of gross, flagrant or mass violations of human rights (paragraph 10.2 of the Decision).
The Committee recalls its general comment No. 1, according to which the risk of torture should be assessed on grounds beyond speculation or suspicion. Although the assessment of this risk should not be based on the criterion of a high degree of probability, the risk should be personal and real. The Committee notes that the burden of proof usually lies with the applicant, who must present convincing arguments proving that he or she is in foreseeable, real and personal danger (See communications No. 203/2002, A.R. v. the Netherlands, Decision adopted on November 14, 2003; and No. 258/2004, Dadar v. Canada, Decision adopted on November 23, 2005). The Committee...Recalls that, in accordance with the provisions of general comment No. 1, it will rely heavily on factual statements prepared by the authorities of the State party concerned (See communication No. 356/2008, N.S. v. Switzerland, Decision adopted on 6 May 2010, paragraph 7.3.), but at the same time does not consider himself bound by such conclusions and proceeds from the fact that, in accordance with paragraph 4 of article 22 of the Convention, he is entitled to freely assess the facts, taking into account all the circumstances in each specific case (paragraph 10.3 of the Decision).
The Committee's assessment of the factual circumstances of the case: The Committee takes note of the applicant's claim that there is a foreseeable, real and personal risk that he will be subjected to torture if extradited to Turkey, as he has already been tortured in the past while in custody on charges of murder, and that his conviction in In 1989, it was based on evidence obtained under duress; that the extradition request was politically motivated due to his Kurdish origin and the active support of the PKK by his family; that his political affiliation is known to the Turkish authorities; that the Turkish authorities requested his extradition only more than 20 years after his conviction, although they were aware of his whereabouts in 1992; that three of his relatives in Turkey were prosecuted for supporting the PKK; and that his family members were questioned about his their location when they visit Turkey. The Committee...Notes the applicant's claim that the risk of torture will increase because he escaped from prison in Turkey and has tattoos in the form of a Christian cross and inscriptions [with profanity]. The Committee further notes that the complainant was diagnosed with post-traumatic stress disorder and that he attempted suicide while in custody awaiting extradition. He notes that, according to a psychiatric examination conducted in 2015, his extradition will almost certainly lead to repeated psychological trauma (paragraph 10.4 of the Decision).
The Committee notes the State party's contention that its extradition authorities have concluded that the author's statements are not credible. In this regard, the State party argues that no evidence of torture has been mentioned in medical reports since his conviction; that psychiatric reports establishing a causal link between his torture and post-traumatic stress disorder are based mainly on the author's own statements; that the complainant did not claim to have been tortured after sentencing; that it seems unlikely that his brother S.I. would have agreed to remain in prison in his place if he had been tortured, as the applicant claims; and that there are contradictions in the applicant's statements concerning his political activities in Turkey and Switzerland (paragraph 10.5 of the Decision).
The Committee recalls its consideration of the fourth periodic report submitted by Turkey, during which it expressed serious concern about numerous reports that law enforcement officials use torture and ill-treatment against detainees against the background of combating alleged security threats in the context of the insurgency carried out by the PKK since 2015, and in particular in connection with reports of impunity enjoyed by the perpetrators of such acts, especially in the absence of an independent State body to investigate complaints of torture and ill-treatment by law enforcement officials (Ibid., para. 9. The Committee also expressed concern about the poor medical care in penitentiary institutions (para. 31).). In the circumstances of the present case, the Committee takes note of the State party's argument that Turkey has provided diplomatic assurances in support of the extradition request, that representatives of the Swiss authorities in Turkey will be able to monitor their compliance and that Turkey, as one of the countries parties to the European Convention on Extradition, has never violated its diplomatic assurances. The Committee also takes note of the complainant's allegations that diplomatic assurances are not sufficient and reliable to eliminate the risk of torture in his case due to the political motivation of the extradition request; that the use of torture in places of detention is still widespread in Turkey; that it is difficult to monitor compliance with diplomatic assurances, since the complainant, allegedly, he was not entitled to the assistance of a lawyer before his conviction; that the Swiss authorities do not deny that the applicant faces persecution upon his release; and that there is an increased risk that he will be detained and tortured by secret service personnel before he is handed over to prison authorities, due to his association with senior PKK members in Switzerland. The Committee takes note of the statement, not disputed by the State party, that the assurances were provided by Turkey only after three unsuccessful attempts, which indicates Turkey's unwillingness to comply with them; and that the human rights situation in Turkey has deteriorated significantly since these assurances were provided in 2012, especially in light of the 2015 elections and the insurgency carried out by the PKK, the attempted coup and the imposition of a state of emergency in 2016, the subsequent large-scale arrests, detentions and dismissals of persons suspected of subversion activities, and amendments to the Constitution introduced in 2017 (paragraph 10.6 of the Decision).
The Committee notes that there is no objection to the fact that the State party's asylum authorities concluded that the complainant's forced return would expose him to the risk of torture. However, the State party argues that the diplomatic assurances given by Turkey preclude any such danger. The Committee...Notes that medical reports indicate that the complainant suffers from post-traumatic stress disorder as a result of the torture he was subjected to and that he attempted suicide after the State party agreed to his extradition. On the basis of the information at its disposal, the Committee concludes that, in the circumstances of the present case, diplomatic assurances cannot eliminate the existing serious grounds for believing that the applicant's extradition to Turkey would put him at risk of being subjected to torture in violation of article 3 of the Convention (paragraph 10.7 of the Decision).
The Committee's conclusions: The State party is obliged, in accordance with article 3 of the Convention, to refrain from extraditing the applicant to Turkey or any other country where he is in real danger of being returned to Turkey (paragraph 11 of the Decision).